Davidson v. State, 6 Div. 322

Decision Date04 October 1977
Docket Number6 Div. 322
Citation351 So.2d 683
PartiesClara DAVIDSON v. STATE.
CourtAlabama Court of Criminal Appeals

Fred Blanton, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and James L. O'Kelley, Asst. Atty. Gen., Montgomery, and Glenn E. Thompson, Student Research Aide, Birmingham, for appellee.

HARRIS, Judge.

Appellant was put to trial on a two-count indictment purportedly charging grand larceny and buying, receiving, and concealing stolen property. The trial court charged out the second count stating: "I instruct you that count two does not apply to the trial of this case."

Omitting the formal parts count one reads as follows:

"The grand jury of said county charge that, before the finding of this indictment, Clara Davidson, whose name is to the Grand Jury otherwise unknown, feloniously took two hundred dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the personal property of Charles David Neese, against the peace and dignity of the State of Alabama."

The jury returned the following verdict:

"We the jury find the defendant guilty of grand larceny as charged in the indictment and fix the value of the stolen property at two hundred dollars."

Thereupon the Court sentenced appellant to imprisonment in the penitentiary for a term of three years.

It will be noticed at once that the count upon which appellant was convicted omits the words, "and carried away." Asportation is an essential element of the offense of grand larceny and its omission renders the indictment fatally defective and will not support the judgment of conviction even though no objection, by way of a demurrer, was raised to the count in the lower court.

We thought that, perhaps, there was an error in the transcription of this count in the record and requested the Clerk of this Court to call the Circuit Clerk's Office in Birmingham and read to her the original indictment. This was done and the words "and carried away" are not in the original indictment.

Larceny is generally defined as the felonious taking and carrying away of personal property of another with intent on the part of the taker to convert to his own use, or to deprive the owner thereof. Meadows v. State, 36 Ala.App. 402, 56 So.2d 789; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.

Exactly one hundred years ago Justice Stone in the case of Rountree v. State, 58 Ala. 381, held the following indictment to be defective:

"The grand jury of said county do further charge that, before the finding of this indictment, Jim Rountree, Monday Rountree, Neil Asbury, John Isaiah, and Aaron Lampley, feloniously took and carried______one bale of lint cotton, of the value of fifty dollars, the personal property of a person, whose name is to the grand jury unknown," etc.

Justice Stone pointed out that the word "away" was omitted and this omission rendered this count in the indictment bad.

Where an indictment does not on its face charge any offense it is the duty of this Court to take note of such defect and declare that it will not support a judgment of conviction despite the absence of any attack on it in the lower court. Mehaffey v. State, 16 Ala.App. 99, 75 So. 647; Brown v. State, 32 Ala.App. 246, 24 So.2d 450; Raisler v. State, 55 Ala. 64; Emmonds v. State, 87 Ala. 12, 6 So. 54; Dowdy v. State, 22 Ala.App. 514, 117 So. 489; Likos v. State, 28 Ala.App. 231, 182 So. 81.

In all fairness to the Circuit Judge who tried this case, and we say without fear of contradiction that he is one of the most distinguished judges to grace any bench, we should point out that the defective indictment was not brought to his attention. Nevertheless, under the cited authorities we are bound to notice it.

We do...

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7 cases
  • Biddie v. State, 6 Div. 179
    • United States
    • Alabama Court of Criminal Appeals
    • 12 Noviembre 1986
    ...indictment constitutes plain or obvious error, there is authority which indicates such a result. See Nelson, supra; Davidson v. State, 351 So.2d 683, 685 (Ala.Cr.App.1977). As we stated earlier, the matter of obvious error was not even addressed in Geter, supra. Our holding in Geter, supra,......
  • Tomlin v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 20 Noviembre 1979
    ...against him, this court is bound to take notice of such defect even in the absence of an objection. Edwards, supra; Davidson v. State, 351 So.2d 683 (Ala.Cr.App.1977); Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 (1974). If the indictment had been void rather than voidable, the defec......
  • Edwards v. State, 7 Div. 691
    • United States
    • Alabama Court of Criminal Appeals
    • 16 Octubre 1979
    ...the indictment is void and this Court is bound to take notice of such a defect even in the absence of an objection. Davidson v. State, 351 So.2d 683 (Ala.Cr.App.1977); Andrews, supra; Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 (1974). Were the indictment in this case void and not m......
  • Davidson v. State, 6 Div. 320
    • United States
    • Alabama Court of Criminal Appeals
    • 16 Mayo 1978
    ...the count charging buying, receiving, and concealing stolen property did not apply to a similar factual situation. Davidson v. State, Ala.Cr.App., 351 So.2d 683 (1977). Because the evidence does not support the finding of the jury and the judgment of the trial court as a matter of law, the ......
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